Exhibit 10.1
SEPARATION AND SEVERANCE AGREEMENT
This SEPARATION AND SEVERANCE AGREEMENT ("Agreement") is by and between
Xxxxx Xxxxx ("You") and Xxxxxxx Industries, Inc. ("the Company") and is
effective as of the Effective Date stated herein.
WHEREAS You are currently employed by the Company; and
WHEREAS You and the Company wish to conclude Your employment with the
Company on the terms and conditions stated herein;
NOW, THEREFORE, You and the Company (collectively "the parties") agree as
follows:
1. Your Separate Agreements. In exchange for the consideration stated in
this Agreement, to which consideration You agree You are not otherwise entitled
and which consideration You acknowledge as valid and sufficient, You agree:
(a) For purposes of receipt of salary and benefits eligibility, You shall
remain on Company's payroll through April 15, 2005
(b) To the maximum extent permitted by law and without exception, You
release and waive any and all claims, demands, and/or causes of action
(collectively "claims") known or unknown, suspected or unsuspected, that, as of
the Effective Date, You have or could have against the Company and/or any or all
of its current and/or former parent corporations, current and/or former
subsidiary corporations, current and/or former directors, current and/or former
officers, current and/or former fiduciaries, current and/or former employees,
current and/or former agents, current and/or former successors, current and/or
former assigns, and/or other entities currently and/or formerly affiliated with
or related to the Company (collectively hereinafter "the Company Affiliates").
(c) The claims released and waived under this Agreement include, but are
not limited to, any and all claims You and/or anyone acting on Your behalf hold
or own or have at any time before the Effective Date held or owned against the
Company and/or the Company Affiliates, including but not limited to, to the
maximum extent permitted by law, claims under any federal and/or state
Constitution; claims under any federal, state, and/or local common law,
including claims sounding in tort and/or contract; claims under any federal,
state, and/or local public policy; claims under the Employee Retirement Income
Security Act; claims under the Family and Medical Leave Act; claims under the
Equal Pay Act; claims for workers' compensation retaliation and/or
discrimination; claims under the Fair Labor Standards Act and/or any other
federal, state, and/or local wage payment law; claims for discrimination
(including harassment) and/or retaliation under any federal, state, and/or local
law, including but not limited to 42 U.S.C. ss. 1981, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Americans with
Disabilities Act, the Age Discrimination in Employment Act, and/or any other
federal, state, and/or local law, statute, ordinance, and/or regulation; claims
under any and all other federal, state, and/or local laws, statutes, ordinances,
regulations, and/or common law; and claims under any practice and/or policy of
the Company, including but not limited to any benefit plan of the Company and/or
any of the Company Affiliates.
(d) The Company has not made any representations to You regarding the tax
implication of any payments made pursuant to this Agreement, and any and all
liability for Your portion of federal, state, and local taxes related to such
payment remains with You, unless otherwise agreed to in writing by the Company.
(e) (1) You will not communicate the contents of this Agreement or the
circumstances or the discussions leading to this Agreement ("Confidential
Information") other than to Your immediate family members, to Your attorney, to
Your accountant, to governmental taxing authorities, or if compelled by a court
of competent jurisdiction or otherwise required by law ("Authorized Persons");
(2) before You disclose any Confidential Information to any Authorized Persons,
You will inform them that the matter is confidential, that compliance with this
confidentiality provision is a material condition of this Agreement, and that
any disclosure of Confidential Information to persons or entities not authorized
to receive it is a material breach of this Agreement; (3) if You are compelled
to disclose any Confidential Information by a court of competent jurisdiction or
otherwise, then You will give the Company's Human Resources Department as much
notice as is reasonably practicable before such disclosure in the event the
Company wishes to intervene to protect its rights under this Agreement.
(f) Except with the express written consent of the Company, You will not
directly or indirectly communicate, divulge, or use, whether for Your benefit or
for the benefit of any third party, any confidential and/or proprietary
information concerning the Company's business, including but not limited to the
Company's operations, services, materials, policies, and the manner in which
they are developed, marketed, and/or provided, attorney-client privileged
information, attorney work product-privileged information, and any and all such
other information regarded as trade secrets and/or confidential and/or
proprietary information by the Company and/or under any applicable law,
regulation, rule, and/or ethical guideline.
(g) As of the date You signed this Agreement, You (1) have not suffered an
injury You currently believe to be work-related that You have not properly
disclosed to the Company; (2) have been paid in full all wages due and owing to
You for any and all work performed for the Company and/or any of the Company
Affiliates (aside from those wages due and owing under the deferred compensation
arrangement addressed in ¶ 2(j) below); and/or (3) have not exercised any
actual or apparent authority by or on behalf of the Company and/or any of the
Company Affiliates that You have not specifically disclosed to the Company.
(h) You will abide by the following restrictions, which restrictions You
agree You will not challenge as unenforceable in any action, are necessary for
the protection of the Company's protectible interests, are reasonable in
duration and scope, may be enforced through injunction without the Company
posting bond, and, if found for any reason not to be enforceable as written, are
to be modified only so far as is necessary to be enforceable and not declared
generally unenforceable based on such overbreadth:
(1) for a period of three (3) years after the Effective Date, You will
not directly or indirectly employ, attempt to employ, or solicit for
employment (or assist in any of the foregoing), whether for Your benefit or
for the benefit of any third party, any person who is at that time working
for or rendering services to the Company or any of the Company Affiliates;
and
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(2) for a period of three (3) years after the Effective Date, You will
not directly or indirectly solicit or accept business from (or assist in
any of the foregoing), whether for Your benefit or for the benefit of any
third party, any then customer or prospective customer of the Company or
any of the Company Affiliates; and
(3) for a period of three (3) years after the Effective Date, You will
not directly or indirectly engage, whether through self-employment or as an
employee, independent contractor, consultant, partner, shareholder,
volunteer or otherwise, in a business or other endeavor that is at that
time competitive with the business of the Company or any of the Company
Affiliates.
(i) You will not disparage in any way or make negative comments of any sort
about the Company or any of the Company Affiliates, their customers, and/or
their vendors, whether orally or in writing and whether to a third party or to
an employee of the Company and/or the Company Affiliates.
(j) You have returned to the Company and/or not otherwise retained any
business records or documents relating to any activity of the Company and/or any
of the Company Affiliates, including but not limited to files, records,
documents, plans, drawings, specifications, equipment, software, pictures, and
videotapes, whether prepared by You or not.
(k) You will participate in any investigation involving the Company, in the
preparation of any legal matter involving the Company and/or any of the Company
Affiliates and/or involving any other matter that arose during Your employment
with the Company, provided, however, that the Company will reimburse You for any
reasonable travel and out-of-pocket expenses incurred by You in providing such
cooperation.
(l) You received this Agreement on our about April __, 2005; the Company
advised You/hereby advises You that You have twenty-one (21) calendar days after
the date You received this Agreement to execute it (although You may execute it
sooner if You wish), the Company advised You/hereby advises You to consult with
independent legal counsel before signing this Agreement, You may revoke this
Agreement within seven (7) calendar days after You sign it by returning written
revocation in that time to the Company via certified mail, and this Agreement is
effective and enforceable on the eighth (8th) calendar day following the date
You sign it ("Effective Date"), provided You do not earlier revoke it as
provided in this paragraph.
(m) You have read this Agreement, understand its terms, and sign it
voluntarily of Your own free will and upon advice of independent legal counsel
(at Your option), without coercion or duress, and with full understanding of its
significance and binding effect.
2. The Company's Separate Agreements. In exchange for the consideration
stated in this Agreement, which consideration the Company acknowledges as valid
and sufficient, the Company agrees as follows:
(a) To provide You with a lump sum severance payment in the amount of two
hundred fifty thousand dollars and zero cents ($250,000.00), less applicable
deductions and
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withholdings. The Company will provide You such severance pay in forty-eight
equal bi-monthly installments beginning according to its regular payroll
schedule, beginning with the payroll date immediately after the Effective Date.
(b) Through April 30, 2005, to continue Your health coverage at the same
level as that at which You were enrolled on Your last day of employment, subject
to generally applicable changes to such coverage that affect other Company
employees enrolled at that level. Thereafter, the Company will provide You with
applicable COBRA information.
(c) To allow You issuance, as fully vested as of the Effective Date, the
45,000 restricted shares of Xxxxxxx stock that are currently held in escrow. In
so doing, the Company will allow You to reduce the shares issued by the amount
of applicable payroll taxes to the nearest 100 shares, if You so choose, and the
Company will pay the payroll taxes. The amount of applicable payroll taxes shall
be based on the value of the restricted shares on the Effective Date. The
redemption, valuation, and filing of Form 4 will occur thirty (30) days after
the Effective Date based on the closing price as of that date.
(d) Within a reasonable period of time after the Effective Date, to pay You
seven thousand six hundred eighty six dollars and zero cents ($7,686.00) for the
remaining six months of Your current residential lease in the Dallas, Texas
area.
(e) If You elect to relocate from the Dallas, Texas area within two years
of the Effective Date, to reimburse You for up to ten thousand dollars and zero
cents ($10,000.00) in actual moving expenses for such relocation, which
reimbursement the Company will provide within a reasonable period of time after
You submit acceptable documentation supporting such actual moving expenses.
(f) To pay You fifty thousand dollars and zero cents ($50,000.00) to
compensate You for stock options forfeited in connection with Your retirement.
The Company will provide You such pay in twelve equal monthly installments to
begin after the last monthly payment referenced in ¶ 2(a).
(g) As soon as practicable after the Effective Date of this Agreement, to
distribute Your deferred compensation, less applicable deductions and
withholdings, currently scheduled to be distributed on January 1, 2006.
3. Additional Terms. In addition to the foregoing, the parties agree:
(a) Neither the existence of this Agreement nor anything contained in this
Agreement shall constitute an admission of any liability on the part of You, the
Company, or any of the Company Affiliates, the existence of which liability the
parties expressly deny.
(b) If any provision of ¶ 1(b)-(c) of this Agreement is ever declared
unenforceable, void, invalid, or voidable as a result of a claim brought by or
on behalf of You, then You agree voluntarily to repay to the Company the entire
payment made under paragraph 2 of this Agreement, notwithstanding any law,
regulation, or agency interpretation/opinion to the contrary.
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(c) If any provision of this Agreement other than ¶ 1(b)-(c) of this
Agreement is ever declared unenforceable, void, invalid, or voidable, then the
parties intend that the validity, legality, and enforceability of the remaining
provisions of this Agreement shall in no way be affected or impaired and that
the remaining provisions of this Agreement shall remain valid and enforceable as
written to the maximum extent permitted by law.
(d) This Agreement contains the entire agreement between the parties with
respect to the matters contemplated hereby, and no modification or waiver of any
provision of this Agreement will be valid unless in writing and signed by You
and the Company.
(e) This Agreement shall be construed in accordance with the laws of the
State of Kansas, any and all actions regarding this Agreement shall be brought
in the federal or state courts situated in that state (as applicable), and the
parties hereto consent to the venue of, and the exercise of personal
jurisdiction by, the federal/state courts situated in that state,
notwithstanding any law or authority to the contrary.
(f) This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which shall constitute
together one and the same Agreement.
(g) They are not relying on any representation of any other party not
contained herein and that, in the event of any dispute concerning this
Agreement, the parties shall be considered joint authors and no provision shall
be interpreted against any party because of alleged authorship.
(h) This Agreement is binding on and inures to the benefit of the Company's
successors and assigns and Your heirs and assigns, and the Company may assign
this Agreement, including, but not limited to, the prohibitions in paragraph
1(h).
(i) This Agreement shall not be strictly construed by or against either
party, it being the parties' intent that this Agreement shall be interpreted as
reasonable and so as to enforce the parties' intent and to preserve this
Agreement's purpose.
(j) In any action to enforce this Agreement, in whole or in part, the party
prevailing in such action shall be entitled to recover its reasonable costs and
attorney's fees incurred in pursuing such action.
IN WITNESS WHEREOF, the parties execute this Agreement on the day and year
indicated below.
Date: 4/25/05 /s/ Xxxxx X. Xxxxx
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Xxxxx Xxxxx
` On Behalf of the Company:
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Date: 5-5-05 By: /s/ Xxxxxx Xxxx Xxxxxxx
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Title: Pres. & CEO
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